Iulia Motoc and Ineta Ziemele have recently edited an excellent book “The Impact of the ECHR on Democratic Change in Central and Eastern Europe” (CUP, 2016). Here is its abstract :

High hopes were placed in the ability of the European Convention and the Court of Human Rights to help realise fundamental freedoms and civil and political rights in the post-communist countries. This book explores the effects of the Strasbourg human rights system on the domestic law, politics and reality of the new member States. With contributions by past and present judges of the European Court of Human Rights and assorted constitutional courts, this book provides an insider view of the relationship between Central and Eastern European states and the ECHR, and examines the fundamental role played by the ECHR in the process of democratisation, particularly the areas of the right to liberty, the right to propriety, freedom of expression, and minorities’ rights.

The European Court of Human Rights has recently delivered judgment in the case of Baka v Hungary (20261/12) concerning the dismissal of the former President of the Supreme Court of Hungary, András Baka, who held between 1991 and 2007 the post of the Hungarian judge at the European Court of Human Rights. Baka complained that he was prevented from challenging the termination of his position as the Supreme Court justice before his mandate expired. Baka was during his term very critical of the incumbent Hungarian government. His position as the President of the Supreme Court was terminated due to the structural and institutional changes within the highest level of Hungarian judiciary. Baka was later elected for a judge of the new Kúria, the successor of the former Supreme Court of Hungary. Even though this case should not be read and interpreted without the reference to the recent developments in Hungarian public space and the remnants of post-communist legacy, it nevertheless offers some insights as to the nature and scope of freedom of expression of judges at the highest national courts. In this way the Court held that :

100. … it was not only the applicant’s right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary, after having gathered and summarised the opinions of different courts. The applicant also used his prerogative to challenge some of the legislation concerned before the Constitutional Court and the possibility to express his opinion directly before Parliament during the relevant parliamentary debate. There is no evidence to conclude that the views expressed by the applicant went beyond mere criticism from a strictly professional perspective, or that they contained gratuitous personal attacks or insults.

The Court therefore confirmed that also judges enjoy freedom of expression, which is, however, not unlimited. Freedom of expression is a human right which protects the important democratic values of pluralism, free thinking, tolerance and broadmindedness. The European Court of Human Rights has stated that freedom of expression “is a prerequisite for the functioning of democracy” (Özgür Gündem v. Turkey, no. 23144/93, 16.3.2000, para. 43). The maturity of a society can be judged by the level of its culture, speech and dialogue. Freedom of expression, of course, is not an all-encompassing right that would protect even the most extreme forms of expression in a democratic society. The Court therefore found :

78. … that there has been a violation of the applicant’s right of access to a tribunal competent to examine the premature termination of his mandate as President of the Supreme Court, as guaranteed by Article 6 § 1 of the Convention.

The Court found also held that Hungary violated applicants’sfreedom of expression. More specifically, it noted:

101. The applicant’s term of office as President of the Supreme Court was terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election… The Court reiterates that the fear of sanction has a “chilling effect” on the exercise of freedom of expression and in particular risks discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office …This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of, and thus the justification for, the sanction imposed on the applicant.”

This case confirms that freedom of expression enjoys broad protection. What is more, freedom of expression is very much dependent on the notion of democracy so that courts must address dilemmas of freedom of expression hand in hand with protection of pluralism in a given society. Therefore, harsh political statements and contributions will not be a priori excluded from the scope of protection of freedom of expression.

N.B. Is Mr Baka the first former Strasbourg judge to win a case before ECtHR ?

The European Court of Human Rights has on 23 January 2014 delivered judgment in W. v Slovenia (no. 24124/06), which we have discussed before. The Court held that Slovenia violated its procedural obligations under Article 3 of the European Convention. More specifically, it held that :

69. … the Court agrees with the applicant that the prolonged state of uncertainty and other negative implications of the lengthy proceedings, in particular having to relive the painful events a number of times in three separate retrials, caused her unnecessary suffering and frustration which could have been avoided had the criminal-law mechanisms aimed at deterrence of and punishment for criminal acts of sexual abuse been applied in an effective and prompt manner. In this regard, the Court would add that the failure of the State to ensure effective prosecution of rape cannot be justified by the backlog of cases in the relevant courts (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V, and the references cited therein). Neither can it be justified by the frequent changes of the sitting judges who were dealing with the applicant’s case. Namely, as the Court has already emphasised on many occasions, it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention (see, for example, Šilih, cited above, § 210).

The Court also held that redress obtained by an applicant was not sufficient. It reasoned as follows :

84. In the Court’s opinion the effects of the prolonged uncertainty as to the outcome of the criminal proceedings and related mental distress endured by the applicant over the period of seventeen years, coupled with the short prison sentences imposed on the defendants, are comparable to the breaches found by the Court in the cases cited in the previous paragraph, which should be reflected in the amount of compensation awarded to the applicant. This finding cannot be changed by the fact that the outcome of the present case, in which eight out of ten defendants were eventually convicted and sentenced to imprisonment, was, as pointed out by the Government, favourable to the applicant.

85. Therefore, the Court considers that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress and thus she may still claim to be a “victim” of a breach of Article 3 of the Convention.